Legislative Update: Local Government Travel Expense Control Act (P.A. 99-604)

Effective January 1, 2017, many public agencies (defined as school districts, community college districts, and units of local government other than home-rule units) will be required to formally adopt policies regulating the reimbursement of travel, meal, and lodging expenses. Such policies must be approved by ordinance or resolution and must, at a minimum, address the following: (1) the types of official business for which travel, meal, and lodging reimbursements will be allowed; (2) establish maximum allowable reimbursements; and (3) provide a standardized form for the submission of such reimbursements. Any expense incurred above the maximum allowable amount or incurred by a member of the governing board must be approved by roll call vote at an open meeting of the public body.

The Act also provides requirements for the contents of the public agency’s standardized reimbursement forms. Specifically, all forms containing a request for reimbursement under the policy must be submitted in writing and must include: (1) an estimate of the cost of travel, meals, or lodging (if the expenses have not yet been incurred) or receipts documenting the cost of travel, meals, or lodging (if the expenses have already been incurred); (2) the name of the individual who is requesting the expense reimbursement; (3) the job title/office of the individual who is requesting the travel reimbursement; and (4) the date(s) and nature of the official business for which the reimbursement is being requested.  The Act also explicitly provides that any forms submitted pursuant to the act are public records subject to the Freedom of Information Act (“FOIA”).

In addition to the above-cited requirements, the Act also requires that public agencies refrain from reimbursing “entertainment expenses” including those for shows, amusements, theaters, circuses, sporting events, or other public or private entertainment, unless such expense is ancillary to the purpose of the reimbursable program or event.

If you would like further information about this Act, and how it may affect you as a public body, please contact Peter K. Wilson, Jr, Steven A. Andersson, Jessica L. Briney, or Laura M. Julien, of Mickey, Wilson, Weiler, Renzi & Andersson, P.C., 2111 Plum Street, Suite 201, Aurora, Illinois 60506. Telephone Number: 630-801-9699, or by E-mail at: pkw@mickeywilson.com;  saa@mickeywilson.com; jlb@mickeywilson.com; and lmj@mickeywilson.com

By:  Laura M. Julien

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Reversal of Attorney General PAC Opinions Upheld by Fourth District Appellate Court

Case Law Alert: Open Meetings Act

Reversal of Attorney General PAC Opinions Upheld by Fourth District Appellate Court

On December 15, 2015, the Illinois Appellate Court upheld the Circuit Court’s reversal of at least two binding public access counselor (“PAC”) opinions issued by the Attorney General of Illinois (“AG”) with regard to purported Open Meetings Act (“OMA”) violations in Bd. of Educ. of Springfield Sch. Dist. 186 v. Attorney Gen. of Illinois & Molly Beck.

The underlying action arose when the Board of Education of Springfield School District No. 186 (“School Board”) acted to terminate the Superintendent’s employment. Prior to acting on the Superintendent’s termination in open session, the School Board convened in closed session to review and sign (but not date) the Superintendent’s separation agreement. It was undisputed that the topic of the closed session, the termination of personnel, was appropriate to discuss in this forum. Following its review of the agreement, the School Board then reconvened into open session and voted upon the Superintendent’s termination and approved the separation agreement, which was passed by a 6-1 vote. Following its approval in open session, a date was added to the separation agreement next to the trustees’ signatures.

A reporter, acting on behalf of a local newspaper, challenged the School Board’s actions on two separate grounds. First, it was alleged that signing the separation agreement during closed session constituted impermissible “action” by the School Board. This argument was supported by the premise that the act of signing the agreement was the equivalent of approving the agreement, in violation of OMA which provides that the action of all public bodies must occur during open session. The AG agreed, stating that the act of signing the document “did constitute the taking of a final action in violation of section 2(e) of [OMA]” and issued a binding opinion to that effect.

Upon instruction of the circuit court, the AG addressed a second issue, namely, whether the School Board’s subsequent vote in open session constituted a ratification of its prior action. The AG found that it did not, because it “failed to adequately inform the public of the nature of the matter under consideration or the business being conducted.” Specifically, it was argued that the item, which appeared under the heading “roll call action items” and entitled “Approval of a Resolution Regarding the Agreement Between Superintendent Milton and the Board,” was not sufficient to “provide the public with information from which it might comprehend the purpose and effect of the Board’s action.” The PAC then issued its second binding opinion. The circuit court, in two separate proceedings, disagreed with the AG and found in favor of the School Board and determined that no OMA violations had occurred. The news reporter and AG appealed both determinations.

The appellate court addressed both issues. First, it reviewed the issue of whether a trustee’s signature on a document executed during a closed board session constituted a violation of OMA. The court found that it did not. Citing Howe v. Retirement Board of the Fireman’s Annuity & Benefit Fund, 2013 IL App (1st) 122446, the court noted that “no public body in Illinois subject to the *** Act can take final action by merely circulating some document for signature and not voting on it publicly.” It further noted that it has long been understood that Section 2 [of OMA] prohibits any final action being taken in closed session and it has long been held that a board convening to closed session was inconsequential so long as the ultimate vote was taken in open session (See also, Jewell v. Board of Education, 19 Ill. App. 3d 1091, 1094-95 (“the fact that there were two votes taken, one at the closed and one at the open session, should not be considered a violation of the act. The crucial fact is that the final vote was taken in open session”).

Addressing the second issue, the court examined whether notice was properly posted, and specifically, whether the item, as listed on the agenda was sufficient to be acted upon. The court held that it was. The relevant statute provides the following with regard to final action: “No final action may be taken at a closed meeting. Final action shall be preceded by a public recital of the nature of the matter being considered and other information that will inform the public of business being conducted.”

Upon examination of the Board’s website, the court located the agenda, which listed the item as “Approval of a Resolution Regarding the… Agreement… between… Milton and the Board” as well as a link to a copy of the proposed agreement. It found this to be sufficient notice to the public and rejected the AG’s reliance on legislative intent (“where statutory language is clear and unambiguous – as in this instance – we need not resort to extrinsic evidence to aid our analysis.”).

By: Laura M. Julien

If you have any questions concerning the Open Meetings Act, Freedom of Information Act, or any other issues concerning public bodies, please contact Peter K. Wilson, Bernard K. Weiler, Steven A. Andersson, Jessica L. Briney, or Laura M. Julien, of Mickey, Wilson, Weiler, Renzi & Andersson, P.C., 2111 Plum Street, Suite 201, Aurora, Illinois 60506. Telephone Number:630-801-9699, or by E-mail at: pkw@mickeywilson.com; bkw@mickeywilson.com; saa@mickeywilson.com; jlb@mickeywilson.com; and lmj@mickeywilson.com.

Criminal Background Checks for Public Sector Employers – Part I

What Public Employers Should Know About the “Ban-the-Box” Movement

Debates surrounding criminal background checks have reemerged as the state has recently passed legislation prohibiting private employers from inquiring as to one’s criminal history during the preliminary stages in the hiring process. While the recent legislation is limited to the private sector, this “ban-the-box” movement has gained momentum throughout the country, with a primary objective of ensuring that candidates are being reviewed for their aptitude prior to addressing any background concerns. Although not required, in 2013 the state also adopted this practice. Consequently, it is important for public sector employers to be aware of the general climate and recent trends pertaining to criminal background checks so as to promote fair hiring practices.

By way of summary, the phrase “ban-the-box” refers to the question on employment applications asking applicants “have you ever been convicted of a crime” and providing candidates with the option of checking a “yes” or “no” box. While Illinois law currently prohibits employers from considering an individual’s arrest record, in practice this question often leads to applicants being discriminated against. The risk is that if an applicant checks “yes,” it will be used as a preliminary screening measure and will disqualify an applicant prior to conducting any further inquiry.

The problems posed by such a question is two-fold. First, in many instances, those in charge of the background check procedure may not be well-versed in the nuances of criminal law. While an employer may consider conviction information, dispositions such as “nolle pros,” “stricken off – leave to reinstate,” and “guilty with court supervision” are often mistakenly treated as convictions and used as disqualifiers.

Secondly, such a practice, without relying on independent fingerprinting information, places employers in a position in which they are basing an employment decision solely based on the information provided by the applicant. Again, because this area of law is especially nuanced, this self-reporting is often inaccurate. Individuals will mistakenly believe that “probation” kept an offense off of their record, while others will assume that they are required to disclose any arrest (or will do so to err on the side of caution). This may lead to inadvertent inaccurate reporting and/or falsification of an employment application.

To alleviate these concerns, the state legislature has required that private sector employers engage in the background check process only after an offer of employment has been extended. Accordingly, public sector employers should be cognizant of these legal trends and create a screening process that is narrowly tailored and set up in a way so as to minimize these potential pitfalls.

In the upcoming weeks, we will explore some of these background check issues in greater detail, so please be sure to check back!

By: Laura M. Julien

For more information regarding criminal background check requirements for public employers, please contact Peter K. Wilson, Bernard K. Weiler, Jessica L. Briney, or Laura M. Julien, of Mickey, Wilson, Weiler, Renzi & Andersson, P.C., 2111 Plum Street, Suite 201, Aurora, Illinois 60506. Telephone Number:630-801-9699, or by E-mail at: pkw@mickeywilson.com; bkw@mickeywilson.com; jlb@mickeywilson.com; and lmj@mickeywilson.com